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2004-73
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its October 14, 2004 public meeting, the Government Records Council (Council) considered the October 4, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations with an amendment directing the Council’s Executive Director Dice to meet with Haddon Township (Township) and Haddon Township Business Partnership, Inc. (HTBP) personnel for the purpose of discussing how to properly address Ms. Fallstick’s Open Public Records Act (OPRA) requests in the future. The Council, therefore, decided that:
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Final Decision Rendered by the Findings and Recommendations of the Executive DirectorKathleen Fallstick, GRC Complaint No. 2004-73Complainant v. Haddon Township and Haddon Township Business Partnership, Inc. Custodians of Records Records Requested – as presented by Complainant:
Custodian: Township
of Haddon – Denise White Adams Complainant’s Case
Position The Complainant identifies the Township of Haddon (Township) and HTBP as the public entities from which records were sought in her Denial of Access Complaint. She further states that the Township informed her it had nothing on record in response to her requests and that she received no reply from HTBP. The Complainant states further that she was not satisfied with the response from Christine Hopkins, Director of HTBP, advising the Government Records Council Staff on August 10, 2004 that HTBP did not have the requested documents. The Complainant asserts that the records concerning HTBP, Inc. should be on file in the Township clerk’s office based on the ordinance that designated HTBP, Inc. to manage the services and programs of the Business Districts for the Township. Public Agency’s Case
Position The Custodian’s Counsel states “the Ordinance places the burden on the HTBP to file copies of minutes of meetings with the Haddon Township Clerk, submit a yearly budget to Haddon Township, and file an annual audit and annual report with Haddon Township.” He states further that, [T]he HTBP, created by the Township of Haddon Ordinance 1082, is clearly a “division, board, bureau, office, commission, instrumentality or agency created by a political subdivision…so as to fit within the definition of “Public agency” or “agency” under N.J.S.A. 47:1A-1.1, the definition section of OPRA. See, The Times of Trenton Publishing Corporation v. Lafayette Yard community Development Corporation, 368 N.J. Super. 425, 846 A.2d 659 (App. Div. 2004). In that case, a private non-profit corporation created by the municipality to redevelop municipal property, a governmental function, was found to be a “Public agency” under OPRA. The Corporation’s board members were appointed by public officials…The HTBP clearly needs to take actions to designate a “Custodian of a government record” under N.J.S.A. 47A-1.1. Custodian’s counsel also states that the present action against the Township should be dismissed and Kathleen Fallstick’s requests should be directed to HTBP. Yes. OPRA requests must be in writing and submitted to the appropriate custodian. OPRA states in pertinent part that: A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the proper custodian. N.J.S.A. 47:1A-5(g) Custodian’s counsel acknowledges that the Custodian received written notice of the February 13, 2004 and May 5, 2004 requests on the respective dates. Both of the Complainant’s requests should be considered valid OPRA requests. Did the Township Custodian provide access to the requested records? If not, did the Township explain why the records would not be forthcoming? No, the Township did not provide access to the requested records. Yes, the Township did explain why the records would not be forthcoming. A Custodian must promptly comply with an OPRA request or provide a written explanation as to why it cannot comply with the request. OPRA states in pertinent part that: If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof. N.J.S.A. 47:1A-5(g). The Custodian has certified that the Township does not have any records responsive to the request. There is nothing on file to rebut that assertion. Therefore, the Council should find that access, at least on the part of the Township, is not at issue. The issue of a written response remains. Here, the Township violated N.J.S.A. 47:1A-5(g) by not providing the requestor with a written response to the subject requests. Custodian counsel’s Statement of Information states, “These requests were received on 2/13/04 and 5/5/04 and were responded to at that time.” Counsel submits no written documentation to support that assertion. However, the Complainant notes on her Denial of Access that the Township advised her that it had nothing on record with the Township Clerk’s office, so clearly a response was provided on a date(s) not evident in the file. While the Custodian erred in not providing the Complainant with a written response as to why access would not be forthcoming, the Council should not find that the violation rises to the level of a knowing and willful violation as the Complainant received the information verbally. Is the Haddon Township Business Partnership, Inc. a “Public Agency” under the OPRA for the purposes of GRC Complaint No. 2004-73? Yes. N.J.S.A. 47:1A-1.1 defines a public agency as:
The terms also mean any political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions (emphasis added). Township Ordinance #1082, adopted by the Township on May 21, 2002, creates business improvement districts in the Township and designates HTBP, a non-profit entity incorporated pursuant to Title 15A of the New Jersey Statutes, as the entity to effectuate the Township’s objectives within the business improvement districts. The ordinance also establishes:
Custodian’s counsel acknowledges that HTBP is an instrumentality created by a political subdivision. Counsel states in the Statement of Information, “Township of Haddon Ordinance 1082, dated 5/21/02 and attached hereto, created the Haddon Township Business Partnership, Inc. (hereinafter HTBP) and the corresponding business improvement districts in Haddon Township.” Government Records Council staff received a copy of the Articles of Incorporation for HTBP from the Custodian. Said document, among other things, reflects that:
It is clear from the foregoing that HTBP is a “Public Agency” as defined in N.J.S.A. 47:1A-1.1. HTBP should be considered as such for the purposes of this OPRA complaint. Is, or was, the Township responsible for responding to OPRA requests for government records maintained by HTBP? No. OPRA defines a custodian as follows: “Custodian of a government record” or “custodian” means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be. N.J.S.A. 47:1A-1.1 Given the above definition, it is clear that the municipal clerk should serve as the custodian for the Township. However, HTBP is an operating entity separate from the Township, despite the fact that the Township created it works closely with it. HTBP is effectively a separate entity from the municipality. HTBP alone should be responsible for OPRA requests submitted to it. The municipal clerk should only be responsible for responding to OPRA requests directed to the Township, not HTBP. Did the Complainant submit valid Open Public Records Act (OPRA) requests, on or dated February 13, 2004 and May 5, 2004, to the HTBP? No. The following is a chronology of correspondence between the Complainant and the Custodian submitted by the Complainant along with her Denial of Access Complaint:
The HTBP initially responded to the Complainant’s April 6, 2004 correspondence on April 20, 2004 and referred the Complainant to the Township. On August 10, 2004, HTBP, according to the Complainant’s recount of events, the HTBP advised the Complainant that the HTBP does not have records responsive to the April 6, 2004 follow-up to the February 13, 2004 OPRA request. The Complainant disputes HTBP’s statement but does not offer evidence supporting her position. The Complainant did not submit a valid, written OPRA request to HTBP on February 13, 2004. And though it was a follow-up to the February 13, 2004 OPRA request, Complainant’s March 23, 2004 and April 6, 2004 e-mails to HTBP are effectively requests for HTBP to forward documentation to the Township, not OPRA requests. The party submissions do not indicate that the Complainant submitted a May 5, 2004 OPRA request to the HTBP. Has the HTBP fulfilled its custodial duties in relation to the February 13, 2004 and May 5, 2004 OPRA requests that form the basis of this complaint? Yes. The HTBP does, nor did it, have a duty to answer the February 13, 2004 and May 5, 2004 OPRA requests. It is the Township, not HTBP, which received them. The Complainant sought records pertaining to HTBP from the Township because she believes that documents relating to HTBP are to be made available at the Township clerk’s office. That is evident by complainant’s communications with HTBP. Those communications are not direct OPRA requests to HTBP for documents. Rather, they are follow-ups with HTBP to determine when the requested HTBP records would be sent to the Township. Documents Reviewed
Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council find that:
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